Martin, Schutz and Crighton JJA

9.4: Signing judgments and orders
10.50: Costs imposed on lawyer
14.2: Application of general rules

Case Summary

The father (the “Appellant”) appealed two Decisions of two separate Chambers Judges that resulted in a change being made in what was purported, by the Appellant, to an agreed shared parenting arrangement.

Absent an Affidavit from the Appellant, the initial Chambers Judge had granted an interim without prejudice temporary order in favor of the mother (the “Respondent”). The Chambers Judge also provided some temporary weekend access for the Appellant in the intervening period. The Chambers Judge, on request, also agreed to invoke Rule 9.4(2)(c), directing that prior approval of the Respondent’s form of Order was not required by the self-represented Appellant. The Respondent’s counsel prepared a form of Order which was signed by the clerk of the Court and filed (the “Langston Order”).

The second Chambers Judge, relying on the Langston Order and on Family Law Practice Note 2B(8)(b), which precludes the Court from making substantial changes to a parenting arrangement in morning Chambers, concluded that the terms of the Langston Order could not be changed and that directed primary residential care should be with the Respondent.

The Court of Appeal noted that the second Chambers Judge did not have the benefit of the transcript that led to the Langston Order. At the outset, the Court of Appeal emphasized that when counsel asks the Court to invoke Rule 9.4(2)(c), counsel assumes the obligation to draft the Order fairly and accurately. This obligation is significant because parties and Judges must be able to rely on the Order’s accuracy. The Court of Appeal noted that this Appeal illustrated the importance of counsel’s obligation and of the consequences that inevitably follow when counsel fails to fulfill that obligation. 

The Court of Appeal found that, on the record before the Court, not only did counsel not fulfill the obligation to draft the Langston Order fairly and accurately, but counsel’s omissions from the Langston Order led the second Chambers Judge to err when relying on the Langston Order and on the Respondent’s counsel’s submissions about it. The Court of Appeal concluded that, had the Langston Order been properly reflected in the Order given, the second Chambers Judge would have appreciated that he was simply being asked to consider the same, earlier adjourned issue and would likely have come to a different conclusion. Accordingly, the Court of Appeal allowed the Appeal and set aside both Orders. 

Turning to the issue of Costs, the Court of Appeal found that the conduct of Respondent’s counsel warranted an enhanced Cost award payable by counsel personally. As such, the Court directed counsel for the Respondent to pay Costs of $2,000 (double Column 1 of Schedule C for attending to argue an Appeal).

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